R v A1 (No. 1)

[2019] NSWSC 611

Supreme Court

New South Wales

Medium Neutral Citation:	R v A1 (No. 1) [2019] NSWSC 611
Hearing dates:	22 May 2019
Date of orders:	22 May 2019
Decision date:	22 May 2019
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	See [33] for orders.
Catchwords:	CRIMINAL LAW - murder trial - application by Crown before trial for non-publication and pseudonym orders - whether orders sought necessary to protect safety of persons - “calculus of risk” approach - orders made
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 Evidence (Audio and Audio Visual Links) Act 1998 Evidence Act 1995
Cases Cited:	AB (A Pseudonym) v R (No. 3) [2019] NSWCCA 46 Darren Brown (a pseudonym) v R (No. 2) [2019] NSWCCA 69 R v Qaumi and Ors (AVL) [2015] NSWSC 1711 R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82 R v Ngo (No. 2) (2001) 124 A Crim R 151; [2001] NSWSC 339 R v Xie (No. 12) [2014] NSWSC 1980
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) A1 (Accused)
Representation:	Counsel: Mr RA Herps (Crown) Mr K Chapple SC (Accused) Mr RJ Wilson (for C1)   Solicitors: Director of Public Prosecutions (Crown) Allied Lawyers (Accused) Legal Aid NSW (for C1)
File Number(s):	2015/296084
Publication restriction:	Publication of this judgment was restricted whilst the jury trial with respect to the Accused was on foot. In July 2019, the Accused was found guilty of murder. On 9 August 2019, the Court authorised the publication of this judgment subject to redactions which had been made after consultation with the parties and counsel for C1.

Judgment

1. JOHNSON J: By Notice of Motion filed in Court today, the Crown seeks orders under the Court Suppression and Non-publication Orders Act 2010 ("CSNO Act”) with respect to the names of various persons, including the Accused.

2. The Crown relies upon the affidavit of Samuel Amvrazis sworn 17 May 2019 in support of the application. Annexed to that affidavit is a statement dated 11 December 2018 of the Officer-in-Charge [name and rank redacted], and a report dated 17 January 2019 of Professor Karl Roberts.

The Crown Case

3. The Crown alleges that the Accused shot the deceased [number redacted] times at the deceased’s then place of residence at [location redacted] on [date redacted]. The Crown alleges that the shooting was premeditated and that the gunman lay in wait for the deceased to return home that evening and shot him as he was entering his residence at about [time redacted].

4. The Accused, his wife and the deceased were all immigrants from [redacted]. The deceased was [redacted]. The Accused and his wife had sponsored the deceased to come to Australia in [date redacted], in the expectation that the deceased would marry the Accused’s daughter. This did not occur. Rather, there was an altercation between the Accused and the deceased at premises in [location redacted] on [date redacted] (for which there are rival explanations) which resulted in the deceased permanently leaving that address. The deceased did not inform the Accused of his new address at [location redacted].

5. It is the Crown case that the Accused [accused’s belief about deceased’s conduct redacted] It is the Crown case that the Accused considered that the [redacted conduct of the deceased] dishonoured the Accused and his family and, as a consequence, the Accused took retributive action. The Crown says that the Accused’s [accused’s belief about deceased’s conduct redacted], coupled with his cultural background, constitutes the motive for the killing.

Previous Orders Under CSNO Act

6. On [date redacted], Magistrate [name redacted], sitting at the [location redacted] Local Court made non-publication and suppression orders in relation to [terms of orders redacted]. These orders were made on the application of the Crown supported by the Accused.

7. In the context of an unsuccessful bail application by the Accused in the Supreme Court of New South Wales, [judge’s name redacted] made suppression and non- publication orders [date and terms of orders redacted].

8. Those orders have remained in place since those dates.

The Present Application

9. In the present Notice of Motion, the Crown seeks that the orders made by Magistrate [name redacted] on [date redacted] and by [judge’s name redacted] on [date redacted] be set aside and that, in their place, orders be made whereby the Accused, the Accused’s wife, the Accused’s daughter, the deceased and [redacted] siblings of the Accused all be identified by pseudonyms with non- publication and suppression orders being made for that purpose.

10. The Notice of Motion seeks that the orders apply to all media, including but not limited to print, radio, television, internet and social media, and that they apply anywhere in the Commonwealth of Australia for a period of 20 years from the date of the order.

11. The Notice of Motion specifies that the orders sought are based upon the ground in sq.(1)(c) CSNO Act, that the order is necessary to protect the safety of persons and, in particular, the Accused’s wife.

12. The Crown relies upon written submissions dated 17 April 2019 in support of the Notice of Motion. In addition, oral submissions were made at the hearing of the application today.

Other Associated Issues

13. I should refer, at this point, to an objection by the Accused’s wife to her being called to give evidence by the Crown in the trial of the Accused. In the course of an introductory discussion with the Accused’s wife concerning the terms and effect of s.18 Evidence Act 1995, on 20 May 2019, the Accused’s wife informed the Court of fears which she held with respect to herself and other members of her family (PT38, 20 May 2019).

14. The Crown proposes to call the wife of the Accused as a prosecution witness at the trial of the Accused. She has made a total of five statements in the proceedings. As a result of the nature of the murder and the ethnic and cultural background of the Accused, the wife of the Accused and the deceased, police harbour concerns for the safety of the Accused’s wife and it was these concerns which gave rise to the initial application made under the CSNO Act at the [location redacted] Local Court on [date redacted].

15. As noted, the Accused’s wife appeared in person on 20 May 2019 with respect to her objection under s.18 Evidence Act 1995. Without objection, I allowed the Accused’s wife to appear by audio-visual link for the purpose of making submissions on that day. When it became apparent that the Accused’s wife wished to have the assistance of an interpreter, I stood over the s.18 objection until 10.00 am today and requested that an interpreter attend for that purpose. The Court also requested the Crown to make contact with the Public Defenders Chambers with a view to the Accused’s wife being advised and represented at the continuation of the s.18 application.

16. Today, Mr Wilson, Public Defender, has appeared for the Accused's wife, instructed by Legal Aid NSW. The Court had been assisted greatly by the submissions of Mr Wilson and is grateful for his assistance at short notice.

17. The s.18 objection was argued today and it will be the subject of a separate ruling tomorrow morning.

18. I took the view on 20 May 2019 that it was both open to the Court and appropriate to hear the Accused’s wife by audio-visual link, rather than require her physical attendance in the courtroom. Reliance was placed upon s.26 Evidence Act 1995 and R v Xie (No. 12) [2014] NSWSC 1980. The Crown and Senior Counsel for the Accused supported this approach.

19. The Crown foreshadowed an application that, should the Accused’s wife be required to give evidence at the trial, the evidence may be given by audio- visual link.

20. In the event that the Accused’s wife is required to give evidence before the jury at the trial, I am satisfied that it is open to the Court to permit the evidence to be given by audio-visual link upon the basis of the concerns expressed by her: s.5B Evidence (Audio and Audio Visual Links) Act 1998; R v Ngo (No. 2) (2001) 124 A Crim R 151; [2001] NSWSC 339, R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82 and R v Qaumi and Ors (AVL) [2015] NSWSC 1711.

Decision on Application Under CSNO Act

21. I return to the Crown application for orders under the CSNO Act. The evidence relied upon by the Crown in support of the application reveals that the Accused’s wife refused to provide a full statement to police concerning [conduct of the deceased redacted] “for fear of being killed by [identity of third parties redacted]”.

22. The statement of Professor Roberts concerning honour-based violence provides further support for fears, in circumstances where [nature of circumstances and cultural concerns redacted]

23. It is not necessary, for the purpose of this ruling, to outline in detail the evidence of the Officer-in-Charge or Professor Roberts. It is sufficient to state that there is a foundation in the evidence for legitimate concerns with respect to the safety of the Accused’s wife and her family if orders under the CSNO Act are not made.

24. The approach to be taken on an application such as this has been identified in decisions including AB (A Pseudonym) v R (No. 3) [2019] NSWCCA 46 and Darren Brown (a pseudonym) v R (No. 2) [2019] NSWCCA 69.

25. The question in this case is whether the orders sought are necessary to protect the safety of any person for the purpose of s.8(1)(c) CSNO Act. A high threshold is imposed by “necessity” and it is not enough if the Court finds that the proposed order is convenient, reasonable or sensible. The Court must also consider whether the orders sought will be effective and have utility.

26. The correct approach in determining necessity is the “calculus of risk” approach: Darren Brown (a pseudonym) v R (No. 2) at [26]-[27], [36]-[37]. The “calculus of risk” approach requires the Court to consider the nature, imminence and degree of likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk does not rise beyond a mere possibility: AB (A Pseudonym) v R (No. 3) at [56].

27. The orders sought by the Crown are narrower than those made in [date redacted] in the [location redacted] Local Court and the Supreme Court (see [6]-[7] above). The orders now sought are limited to orders prohibiting publication of the names of various persons.

28. In considering whether to make the orders presently sought, the Court must have regard to the fact that a primary objective of the administration of justice is to safeguard the public interest in open justice: s.6 CSNO Act.

29. The orders now sought, if made, will involve less interference with the open justice principle than the orders which are presently in place.

30. Although it may be the case that persons in Australia or overseas already have some knowledge of the circumstances of this case, I am satisfied that the making of orders as sought will serve to limit any linkage of the circumstances of this trial with the Accused’s wife and her family members. The more publicity that the circumstances of this trial attracts (if the various persons involved were identified) the greater the risk of harm being inflicted to persons because of the heightened emotions which may flow from that publicity. I am satisfied that there is utility in the making of the orders sought.

31. Applying the “calculus of risk” approach, I am satisfied that the prospective harm involved is very severe so that the orders sought are necessary, even if the risk does not rise beyond a possibility.

32. I am satisfied that the orders sought should be made upon the ground contained in s.8(1)(c) CSNO Act. I am satisfied, as well, that it is appropriate that the orders operate throughout the Commonwealth of Australia for a period of 20 years from the date of the orders.

33. I make the following orders:

1. (1) I set aside the suppression and non-publication orders made by Magistrate [name redacted] at [location redacted] Local Court on [date redacted] and by [name redacted] J in the Supreme Court of New South Wales on [date redacted] and, in lieu thereof, I make orders pursuant to s.7 CSNO Act in the following terms:

(i) that the Accused, [name redacted], shall be identified in connection with these proceedings (including all proceedings in the Supreme Court of New South Wales) by the pseudonym “A1” on the ground that this order is necessary to protect the safety of one or more persons;

(ii) that the Accused’s wife, [name redacted], shall be identified in connection with these proceedings (including all proceedings in the Supreme Court of New South Wales) by the pseudonym “C1” on the ground that this order is necessary to protect the safety of one or more persons;

(iii) that the Accused’s siblings, [names redacted], be identified in connection with these proceedings (including all proceedings in the Supreme Court of New South Wales) respectively by the pseudonyms “C2”, “C3” and “C4” on the ground that this order is necessary to protect the safety of one or more persons;

(iv) that the deceased, [name redacted], shall be identified in connection with these proceedings (including all proceedings in the Supreme Court of New South Wales) by the pseudonym “C5” on the ground that this order is necessary to protect the safety of one or more persons;

2. (v)   that the daughter of the Accused, [name redacted], shall be identified in connection with these proceedings (including all proceedings in the Supreme Court of New South Wales) by the pseudonym “C6” on the ground that this order is necessary to protect the safety of one or more persons;

(vi)    that publication be prohibited of any information tending to reveal the identity of “A1”, “C1”, “C2”, “C3”, “C4”, “C5” or “C6” in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings.

(2)   I order that Order (1) shall apply:

(i) to all media, including but not limited to print, radio, television, internet and social media; and

(ii)   anywhere in the Commonwealth of Australia; and

(iii)   until 20 years from the date of this order.

(3) Orders (1) and (2) are made on the ground under s.8(1)(c) CSNO Act that the order is necessary to protect the safety of persons and, in particular, C1.

34   In the event that this judgment comes to be published on Caselaw at any future time, the names of the persons referred to in the orders will be redacted.

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Decision last updated: 09 August 2019